A. Camden Lewis and Peter D. Protopapas, both of Columbia; and
William P. Walker, of Lexington; for Appellants/Respondents.

Sarah P. Spruill, of Columbia, for Respondent/ Appellant.

FEW, C.J.: Brian and
Catherine Thornton brought this lawsuit as a class action for negligence,
strict liability, and nuisance arising out of blasting activities conducted by
South Carolina Electric and Gas Corporation (SCE&G) at the Lake Murray
dam. SCE&G made a motion titled "Motion for Summary Judgment and to
Strike Class Action Allegations." In substance, the motion sought three
rulings relevant to this appeal. First, in what it labeled "motion to
strike," SCE&G claimed "Plaintiffs cannot establish the requisite
elements required for this case to be certified as a class action under Rule
23, SCRCP." Second, SCE&G moved for summary judgment based on the
statute of limitations. Third, SCE&G argued the South Carolina Mining Act[1] does not create a private cause of action. The Thorntons appeal the circuit
court's ruling in favor of SCE&G on the first and third points, and
SCE&G cross-appeals the denial of summary judgment as to the statute of
limitations. We dismiss the appeal because the order is not immediately
appealable.

I. Appealability

An interlocutory order not governed by a specialized appealability statute is not immediately appealable unless it fits into one of the categories listed in section 14-3-330 of the South Carolina Code (1976 & Supp. 2009). Ex Parte Capital U-Drive-It, Inc., 369 S.C. 1, 6, 630 S.E.2d 464, 467 (2006). The Thorntons contend the portion of the
order dealing with class action allegations is appealable under section 14-3-330(2)(c)
because it affects a substantial right by striking a pleading. They contend
the portion of the order granting summary judgment that no private right of
action exists under the Mining Act is also appealable under section
14-3-330(2)(c), and under section 14-3-330(1) because it involves the merits.
We disagree. Under the circumstances of this case, neither portion of the
order is immediately appealable. The portion of the order denying SCE&G's
motion for summary judgment on the statute of limitations is not appealable
under any circumstance.

A. Order Granting a Motion to Strike Class Action
Allegations

The
Thorntons' complaint defined the class to include: "All residents of
Lexington County, South Carolina who suffered property damage as a result of
the construction and blasting of the Lake Murray dam expansion project." After
discovery, SCE&G filed its motion addressing the class action allegations. Though
the motion was filed under Rule 12, SCRCP,[2] and was captioned as a motion "to strike class action allegations," the
motion actually raised the merits of class certification. The motion states:
"Plaintiffs cannot establish the requisite elements required for this case
to be certified as a class action under Rule 23, SCRCP." The applicable
heading of SCE&G's memorandum in support of its motion states:
"Plaintiffs cannot satisfy the elements to proceed as a class action under
Rule 23(a), SCRCP," and the text of the memorandum addresses the merits of
class certification under the rule. The Thorntons noted in their responsive
memorandum that "Defendants' Motion reads more as a Memorandum in
opposition to class certification," and proceeded to address the merits of
the criteria for class certification. The order also addressed the merits of
class certification:

Defendants
raise the argument that Plaintiffs fail to satisfy the elements set out in Rule
23(a), [SCRCP]. The court has determined that the defenses of the
representative party are not typical of the defenses of the class. As
indicated in the records, each member has unique damages which will require
unique defenses. Accordingly, Defendants' Motion to Strike Class Action
Allegations is granted.

We believe the Thorntons'
contention that this portion of the order is immediately appealable because it affects
a substantial right by striking a pleading mistakenly equates an order granting
a Rule 12(f) motion to strike with an order that is appealable under section
14-3-330(2)(c). We do not believe the two are necessarily the same. In
particular, we find the use of the word "strike" in both Rule 12(f) and
section 14-3-330(2)(c) does not mean that an order granting a Rule 12(f) motion
is automatically immediately appealable.[3]

In P.J.
Construction Co., Inc. v Roller, 287 S.C. 632, 340 S.E.2d 564 (Ct. App.
1986), this court heard an appeal from an order striking two defenses from the
answer. Before proceeding to the merits of the appeal, the court stated:
"An order striking a portion of a pleading is
immediately appealable." 287 S.C. at 633, 340 S.E.2d at 565 (citing Harbert, 74 S.C. at 16, 53 S.E. at
1002).[4]
Other than that general statement, however, no South Carolina appellate court facing
an appeal from an order granting a motion to strike has defined what
constitutes an order affecting a substantial right by striking a pleading under section 14-3-330(2)(c).[5]
Generally, section 14-3-330(2) has "been narrowly
construed and immediate appeal of various orders issued before or during trial
generally has not been allowed." Hagood v. Sommerville, 362
S.C. 191, 196, 607 S.E.2d 707, 709 (2005). We
believe a narrow construction of section 14-3-330(2)(c) requires us to focus
on the effect of the order, not the label given to the motion or to the order
granting it.[6]

We find
support for this view in several opinions of our supreme court. In Miles v.
Charleston Light & Water Co., 87 S.C. 254, 69 S.E. 292 (1910), the
supreme court considered the defendant's appeal from an interlocutory order
denying its motion to make the plaintiff's complaint more definite and
certain. 87 S.C. at 255-56, 69 S.E. at 293. After noting that such an order
was not immediately appealable, the court heard the appeal anyway because
"appeal has also been taken from the order upon the [defendant's]
demurrer, which in effect strikes out a portion of the complaint,"
making it appealable under the predecessor to section 14-3-330(2)(c). 87 S.C.
at 257, 69 S.E. at 293 (emphasis added). In Bowden v. Powell, 194 S.C.
482, 10 S.E.2d 8 (1940), the supreme court considered a post-judgment appeal
from a pretrial order denying a motion to strike allegations in a complaint.
194 S.C. at 484, 10 S.E.2d at 9. In holding the order was not appealable, the
court quoted Harbert to draw a distinction between the order before the
court and an order granting a motion to strike a pleading, which the court
noted is appealable:

If the circuit court errs in striking out any material
allegations of a good cause of action or good defense, it is impossible to
remedy it in the course of the trial, because the evidence and the issues
submitted to the jury cannot be extended beyond the issues made by the
pleading, and on appeal from the final judgment this court could not say there
was error of law in confining the evidence and charge to the pleadings.

Under
the reasoning of Miles and Bowden, an appellate court should look
to the effect of an interlocutory order to determine its appealability under
section 14-3-330(2)(c). An order affects a substantial right by striking a
pleading if the order removes a material issue from the case, thereby
preventing the issue from being litigated on the merits, and preventing the
party from seeking to correct any errors in the order during or after trial.[7]
Whether an order granting a Rule 12(f) motion to strike is appealable under
section 14-3-330(2)(c) depends on the effect of the individual order under the
facts and circumstances of the case. Here, rather than asking the court to
remove an issue from the case, SCE&G's motion to strike actually raised the
merits of class certification.[8]
Rather than preventing the Thorntons from litigating the issue, the order had
the effect of denying class certification on the merits. "The general
rule established by [the supreme c]ourt is that class certification orders are
not immediately appealable." Salmonsen v. CGD, Inc., 377 S.C. 442,
448, 661 S.E.2d 81, 85 (2008) (citing Eldridge v. City of Greenwood, 308
S.C. 125, 127, 417 S.E.2d 532, 534 (1992)). We find this order is not immediately
appealable because its effect was not to strike a pleading, as its label
suggests, but rather to deny class certification on the merits of Rule 23(a),
SCRCP.[9]
On remand, the order shall be treated as an order denying class certification
which, under Rule 23(d)(1), "may be altered or amended before the decision
on the merits." SeeSalmonsen, 377 S.C. at 454, 661 S.E.2d
at 88 ("[C]lass certification may be altered at any time prior to a
decision on the merits.").

The decision we
reach in this case is consistent with a recent opinion of the supreme court on
an interlocutory appeal from an order granting a motion to strike class
allegations: Grazia v. South Carolina State Plastering, LLC, Op. No.
26882 (S.C. Sup. Ct. filed Oct. 4, 2010) (Shearouse Adv. Sh. No. 40 at 13). In Grazia, the plaintiffs' claim for defective stucco work fell under The
Notice and Opportunity to Cure Construction Dwelling Defect Act,[10] which "requires the claimant to serve written notice no later than
ninety days before filing the action." Id. at 19 (emphasis in
original). Neither the Grazias nor any member of the class complied with the
notice provision before filing. Id. at 15. Even after the Grazias
personally complied with the notice requirement, the trial court granted the
defendants' motion to strike class allegations based on its conclusion as a
matter of law that the Act is incompatible with class action procedure. Id. at 15, 18. Although the supreme court did not discuss the appealability of the
order, it was immediately appealable.[11]
By ruling as a matter of law that no class action could be filed under the
Right to Cure Act, the lower court order had the effect of removing the issue
of class certification from the case and preventing the Grazias from litigating
the issue on the merits of Rule 23, SCRCP.

B. Order Granting Summary Judgment Under the Mining
Act

Generally,
orders granting partial summary judgment may be immediately appealable under
either the "involving the merits" or "substantial right"
categories of section 14-3-330(1) and (2)(c). SeeLink v. Sch. Dist.
of Pickens County, 302 S.C. 1, 6, 393 S.E.2d 176, 178-79 (1990) (holding an
order granting partial summary judgment may be appealable under either
category). To decide whether a particular summary judgment order fits into
either subsection, however, the court must examine the order to determine if it
meets the subsection's criteria for appealability. We find the order granting
summary judgment that no private cause of action exists under the Mining Act
does not meet the criteria for either, and is therefore not immediately
appealable.

The
Thorntons asserted causes of action for negligence, strict liability, and
nuisance. They did not plead a cause of action under the Mining Act. At oral
argument, the Thorntons conceded they still have no intention of asserting a
cause of action under the Mining Act. SCE&G stated in memoranda addressing
appealability that its "motion for summary judgment was limited to the
extent the Thorntons might try to assert a claim under the Act." This
appeal thus presents the unique situation in which the trial court granted a
motion for summary judgment as to a cause of action the Thorntons never pled.
The Thorntons did include two violations of the Mining Act as specific
allegations of negligence. SCE&G conceded at oral argument that the
Thorntons' negligence cause of action, including the subsections referring to
the Mining Act, remains in place as it was before the motion was granted.

We find that
this order does not involve the merits under section 14-3-330(1). An order
"involves the merits" when it finally determines a substantial matter
forming the whole or a part of some cause of action or defense. Mid-State
Distribs., Inc. v. Century Imps., Inc., 310 S.C. 330, 334, 426 S.E.2d 777,
780 (1993). The Thorntons may still pursue their negligence claim as
originally pled in their complaint. If the trial judge permits it in the
exercise of discretion, they may introduce evidence that SCE&G violated the
Mining Act and argue the alleged violations are evidence of negligence. All of
this is left to the discretion of the trial judge, just as it would be if the
motion had never been filed.

Further,
because the Thorntons never asserted a cause of action under the Act, the order
does not have the effect of removing any material issues from the case, and
therefore does not affect a substantial right by striking a pleading. The
Thorntons may still offer evidence of SCE&G's alleged violations of the Act
in attempting to prove their negligence claim as pled. Because the order
granting summary judgment neither involves the merits nor affects a substantial
right, it is not immediately appealable.

C. Statute of Limitations Cross-Appeal

In the
cross-appeal, SCE&G contends the trial judge erred in denying its summary
judgment motion as to the statute of limitations. SCE&G further contends
the circuit court's order actually granted summary judgment for the Thorntons
as to that issue. To the extent the judge merely denied summary judgment, the
order is not appealable. Olson v. Faculty House of Carolina, Inc., 354
S.C. 161, 168, 580 S.E.2d 440, 444 (2003) (explaining the denial of summary
judgment will not be considered on appeal even in the context of an otherwise
proper appeal). The order is also not appealable as having granted summary
judgment. As the Thorntons conceded at oral argument, the order does not grant
summary judgment on this issue, and the question of whether the Thorntons
complied with the statute of limitations remains one the circuit court must
answer at trial.

II. Conclusion

An
interlocutory order which is not governed by a specialized appealability
statute may not be appealed before the entry of final judgment unless the order
fits into one of the categories set forth in section 14-3-330 of the South
Carolina Code. The order appealed in this case does not fit into any of the
categories, and therefore is not immediately appealable.

[2] Rule 12(f), SCRCP, provides in part: "Motion to Strike. Upon motion
pointing out the defects complained of, . . . the court may order stricken from
any pleading any insufficient defense or any redundant, immaterial, impertinent
or scandalous matter."

[3] The word "strike" in § 14-3-330(2)(c) and Rule 12(f) has different
origins. In section 14-3-330(2)(c), the word "strike" comes from its
code pleading predecessor enacted in 1870. S.C. Acts Part I., tit. I., sec.
11, Gen. Assemb., Reg. Sess. (S.C. 1869-70). That section, which has not
changed since 1902, includes the phrase "strikes out an answer or any part
thereof, or any pleading in any action." Harbert v. Atlanta &
Charlotte Air Line Ry. Co., 74 S.C. 13, 16, 53 S.E. 1001, 1001-02 (1906).
On the other hand, a motion to strike pursuant to Rule 12(f), SCRCP, originated
in the federal rules of civil procedure decades after and without any reference
to the use of the word "strike" in section 14-3-330(2)(c). See Rule 86, SCRCP ("These rules shall take effect on July 1, 1985.").

[4] The lower court's order in Roller apparently was not entered pursuant to
Rule 12(f), as this court's opinion does not mention the rule, and the appeal
was heard on December 17, 1985, less than six months after the effective date
of the Rules of Civil Procedure. 287 S.C. at 632, 340 S.E.2d at 564.

[6] Our courts have previously looked beyond the labels on motions and orders to
discern their actual effect for purposes of appealability. See, e.g., Wetzel v. Woodside Dev. Ltd. P'ship, 364 S.C. 589, 592, 615 S.E.2d 437, 438 (2005) (holding on unique
facts that an order granting a motion to set aside default was immediately
appealable because it had "the effect of . . . granting a motion to
dismiss under Rule 12(b)(5), SCRCP, since it ends the action as to [one party]"); Hackworth v. Greywood at Hammett, LLC, 385 S.C.
110, 114-15, 682 S.E.2d 871, 874 (Ct. App. 2009) (analyzing a "motion to
strike" which actually challenges a theory of recovery as a motion to
dismiss under 12(b)(6) rather than as a motion to strike).

[7] Our holding is also supported by the supreme court's decision in Breland.
339 S.C. at 93, 529 S.E.2d at 13. In Breland, the court ruled that an
order denying a motion to change venue was not immediately appealable under
section 14-3-330(2)(c), stating: "Immediate
appeals under subsection (2) have been allowed in situations where the
substantial right could not be vindicated on appeal after the case."
339 S.C. at 93, 529 S.E.2d at 13. The court held that "[t]he
trial court's order did not 'affect' the Defendant's right to venue in the
county of its residence because any error in the order can be corrected on
appeal following the trial." Id.

[8] Although the question of whether a class action should be certified is
typically raised by the plaintiff in a motion for class certification, either
party may prompt the court to make this determination. Rule 23(d), SCRCP
("As soon as practicable, after the commencement of an action brought as a
class action, the court shall determine by order whether it is to be so
maintained.").

[9] In Murphy, this court looked to the effect of an interlocutory order to
determine its appealability under section 14-3-330(2)(c). 346 S.C. at 44-45,
550 S.E.2d at 593. Though the order granting the Rule 12(b)(1), SCRCP, motion
was not a final order, the court found it immediately appealable because it had
"the practical effect . . . that it strikes out
the Murphys' complaint with respect to [some but not all defendants]." 346
S.C. at 44, 550 S.E.2d at 593.

[11] "The fact that an appellate court may have decided an appeal of a
particular type of order on the merits is not dispositive of whether the order
is appealable when the issue of appealability was not raised." Breland,
339 S.C. at 95, 529 S.E.2d at 14.